The Google Book Scan Lawsuit Decision

I have written before about the Author’s Guild copyright infringement lawsuit against Google for its unauthorized digitizing of copyrighted works. Now, after eight years of litigation, we have a decision.

Briefly, in 2005 the Author’s Guild and other plaintiffs filed a class action lawsuit against Google for its “Book Search,” alleging that Google violated the copyrights of authors and publishers by scanning their books, creating an electronic database, and displaying short excerpts without the copyright owners’ permission. Google defended its practice by saying it was “fair use.”

A convoluted history. In October 2008, the class action was settled, subject to court approval. The settlement terms were complex, but essentially involved a system whereby any author owning copyright could “opt out” of the scanning scheme, and those who did not opt out would receive some compensation from Google’s advertising revenue. Then, on March 22, 2011, over a year after a February 2010 “fairness hearing,” federal Judge Denny Chin rejected the proposed class settlement, primarily because of the strong negative response to the settlement both by authors and the Justice Department. On May 31, 2012, he issued an opinion denying Google’s motion to dismiss, and granting the individual plaintiffs’ motion for class certification, which Google promptly appealed. On July 1, 2013, without deciding the merits of the appeal, the Second Circuit Court of Appeals vacated Judge Chin’s class certification and remanded the case to him “for consideration of the fair use issues.”

On November 14, 2013, Judge Chin ruled in favor of Google, not only dismissing the case against Google but delivering an unexpected endorsement of the Google Books scanning program — while also rebuking the plaintiffs. He wrote, “In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

Furthermore, “[Google Books] has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors.”

What’s Next? Not surprisingly, Authors Guild executive director Paul Aiken said the Guild plans to appeal because the case “presents a fundamental challenge to copyright that merits review by a higher court.” The appellate court, however, will be the same court that denied class certification and sent the case back to Judge Chin — specifically to consider fair use. It thus seems unlikely the Guild will prevail.